United States | Checking and balancing

America debates how much power state governors should have

State legislatures want more oversight over their executives in an emergency

A sober reckoning with gubernatorial power
|DENVER

ONE YEAR AGO, America’s governors were having a moment. Covid-19 cases were rising, federal leadership was absent and much of the responsibility for fighting the pandemic fell on their shoulders. Before Andrew Cuomo was mired in personal and professional scandals, his daily press briefings were must-see TV. Gretchen Whitmer’s star rose in the Democratic Party after she sparred with Donald Trump, who referred to her as “the woman from Michigan”—a phrase her supporters soon had emblazoned on T-shirts.

Listen to this story.
Enjoy more audio and podcasts on iOS or Android.

But many saw lockdowns, mask mandates and other emergency powers assumed by governors as infringements on their civil liberties. Early this year, lawmakers entered new legislative sessions in a power-restricting mood. So far this year, according to the National Conference of State Legislatures, lawmakers in 45 states have introduced more than 300 bills and resolutions concerning legislative oversight of governors’ emergency powers, with 14 states enacting such measures.

Most new laws place time limits on governors’ emergency orders, and require the legislature’s consent to extend them. Ohio’s legislature granted itself the power to rescind public-health orders from the state’s health department. A law in Utah prohibits the governor from placing stricter emergency limits on religious gatherings than on other meetings.

A national reckoning over gubernatorial power is unusual in American history. Most emergencies are local or regional, but covid-19 affected every state and municipality. Asking how powerful governors should be is welcome, for two reasons.

First, because they have grown far more powerful than they used to be. State governors were at first little more than figureheads. Miriam Seifter, a law professor at the University of Wisconsin-Madison, says that they became more active in the early 20th century, when figures such as Robert La Follette of Wisconsin and Woodrow Wilson of New Jersey pioneered regulatory and electoral reforms; and as the administrative state expanded after the second world war. Today many governors wield powers that even the president lacks, such as the line-item veto, which allows them to delete parts of a bill without rejecting the whole thing.

Second, the question suggests that with the immediate threat of the pandemic receding, Americans are starting to assess how their governments responded to covid-19. “The idea that after a crisis, legislatures and the public would deliberate and reflect on a gubernatorial emergency response, and then follow that with tailored reforms...That’s a good thing,” says Ms Seifter. “That's part of a healthy system of checks and balances.”

Legislatures have been willing to take on governors of their own parties. Ohio’s Republican-led legislature overrode a veto from Mike DeWine, the Republican governor, to impose emergency-powers restrictions. In New York, Democrats revoked the emergency powers that they granted Mr Cuomo last year to deal with the pandemic. (Mr Cuomo earned a reputation for being fond of power: after taking office, he modestly declared, “I am the government”.)

But the more interesting political battles are taking place in states with Republican legislatures and Democratic governors. In Kentucky, the state supreme court heard oral arguments last week in two cases concerning orders issued last year by Andy Beshear, the Democratic governor. Though most of Mr Beshear’s orders have already expired, the court’s decision is still important, both for Kentucky as it continues to navigate the pandemic and for precedent in future public-health crises.

In Pennsylvania, because the governor’s emergency powers are enshrined in the state’s constitution, lawmakers called a referendum on two amendments that would limit emergency orders to 21 days, and give the legislature—rather than the executive branch—the ability to extend, or end, them. Voters approved both measures. Tom Wolf, the state’s Democratic governor, called the strategy a “thinly veiled power grab”. Governors cannot veto or block ballot initiatives; Republican legislators may use the same approach to reform voting rules.

These new state laws may soon be put to the test. Summer usually sees hurricanes in the south-east. Wildfires already blaze across the West. And although the vaccination drive is going well, the virus has not disappeared. The next disaster could reveal whether the new strictures promote good government or tie governors when expediency is most needed.

Before the pandemic “governors often seemed like a footnote”, says John Weingart, the Director of Rutgers University’s Centre on the American Governor. “If nothing else, people have seen that the office of the governor is important—however one thinks their powers need to be adjusted or not.”

This article appeared in the United States section of the print edition under the headline "Checking and balancing"

Broadbandits: The surging cyberthreat from spies and crooks

From the June 19th 2021 edition

Discover stories from this section and more in the list of contents

Explore the edition

Discover more

Do undocumented immigrants have the right to own guns?

A federal court in Chicago decides that some do. Republicans are outraged

Chicago wants to stop Glock pistols being turned into machineguns

The city is suing the manufacturer


Georgia’s black Republicans have a battle plan for 2024

Joe Biden will have to work harder to win the state’s black voters this year